Watson v. Killough

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 7, 2019
• Docket: 18-1335
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 7, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court WARREN D. WATSON,

Plaintiff - Appellant,

v. No. 18-1335 MATTHEW KILLOUGH, P.A.; (D.C. No. 1:16-CV-02595-RBJ-MJW) CORRECTIONAL HEALTHCARE (D. Colo.) SOLUTIONS; YASEMIN TAYLOR, Nurse; JANE DOE, Nurse; KATHRYN TETREAULT, LPN - Licensed Practical Nurse; CATHERINE ROWE, Nurse,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________

Plaintiff Warren D. Watson appeals from the entry of summary judgment against

him by the United States District Court for the District of Colorado. The district court

ruled that Plaintiff failed to exhaust his administrative remedies as required under the

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Plaintiff, a Colorado prisoner proceeding pro se, filed a complaint against

Correctional Healthcare Solutions and its personnel at the Jefferson County Detention

Facility (JCDF) in Golden, Colorado, including Nurse Yasemin Taylor, Nurse Catherine

Rowe, Nurse Kathryn Tetreault, and Physician’s Assistant Matthew Killough

(Defendants). Plaintiff alleged that Defendants acted with deliberate indifference to his

medical needs, in violation of the Fourteenth Amendment. These allegations arose out of

a series of medical requests by Plaintiff over the final eight months of his pretrial

detention at the JCDF. In February 2015 Plaintiff submitted his first of five medical

requests—known as medical “kites”—relating to a growth around his knee. According to

Plaintiff, Defendants saw him several times but failed to adequately treat the growth

before he was transferred to a different facility, allowing the swelling to worsen and to

cause chronic pain and limited mobility. Plaintiff claims that if Defendants had

adequately treated him, he would not have had to wait until August 2016 to undergo

surgery to fix this malady.

Plaintiff’s complaint is governed by the PLRA, which requires that “[n]o action

. . . be brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

Here, the relevant process for administrative remedies is found in the JCDF Inmate

2 Handbook, which provides a process to bring grievances for “abuse, harassment,

abridgement of civil rights or denial of specific privileges.” R., Vol. 1 at 459. Under this

process an inmate must send a kite to an on-duty sergeant within five days of the

incident, so that the sergeant may attempt to resolve the issue informally. If the sergeant

cannot resolve the issue and the complaint meets certain grievance requirements, a

grievance will be issued, at which point the inmate has 24 hours to formally submit it.

Once the staff investigates the grievance and responds in writing, the inmate has five

days to appeal.

Defendants moved for summary judgment for failure to exhaust administrative

remedies, arguing that Plaintiff did not follow the grievance procedure for civil-rights

violations outlined in the Inmate Handbook. Plaintiff responded that the relevant

grievance process was a different one—briefly mentioned in the Inmate Handbook—that

governed grievances about medical services. The district court granted the motion for

summary judgment, reasoning that it was irrelevant whether the civil-rights or medical-

services grievance procedure applied because Plaintiff did not follow either procedure.

That is, Plaintiff never submitted any sort of grievance, only sending medical kites to

request treatment for the swelling around his knee.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment for failure to

exhaust. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Summary

judgment is appropriate if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Because

3 Plaintiff is acting pro se, we construe his filings liberally. See Haines v. Kerner, 404 U.S.

519, 520 (1972).

Plaintiff concedes on appeal that he did not follow the Handbook procedures for

filing civil-rights grievances or medical-services grievances. He argues, however, that

his failure to exhaust should be excused. First, he argues that the procedural

requirements for filing a grievance were unclear and contradictory. We reject the

argument. Not only is Plaintiff factually wrong (the appropriate procedures are, in fact,

clearly delineated in the Handbook), but also he failed to preserve this argument below,

see FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999) (“[W]hen a litigant fails to raise an

issue below in a timely fashion and the court below does not address the merits of the

issue, the litigant has not preserved the issue for appellate review.”).

Plaintiff next contends that his failure to follow the appropriate procedures should

be excused because he was transferred to a different facility in October 2015, soon after

his final request for medical attention. But as the district court explained, Plaintiff could

have filed a grievance after any of his meetings with medical personnel in the eight

months before his transfer. And even if a grievance about his final visit with medical

personnel might have seemed futile in the days leading up to his transfer, the apparent

futility of a grievance procedure is not an excuse for failing to exhaust that procedure.

See Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) (courts “will not read futility or

other exceptions into statutory exhaustion requirements”).

4 III. CONCLUSION

We AFFIRM the district court’s entry of summary judgment. We GRANT

Plaintiff’s motion for extension of time to file his reply brief and his motion to proceed in

forma pauperis. We remind Plaintiff that this status “eliminates only the need for

prepayment of the filing fee. [He] remains obligated to pay the filing fee in monthly

installments.” Rachel v. Troutt, 820 F.3d 390, 399 (10th Cir. 2016); see 28 U.S.C. §

1915(b)(1).

Entered for the Court

Harris L Hartz Circuit Judge